Al-Miahi, Ex parte - Re Ruddock & Ors S154/2000 [2000] HCATrans 562 (11 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S154 of 2000

In the matter of -

An application for Writs of Certiorari, Prohibition and Mandamus and an injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

DINOO KELLEGHAN in her capacity as a Member of the REFUGEE REVIEW TRIBUNAL

Second Respondent

PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

AKEEL RAHMA AL-MIAHI

Prosecutor/Applicant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 11 SEPTEMBER 2000, AT 9.33 AM

Copyright in the High Court of Australia

_____________________

MR D.D. KNOLL: I appear for the prosecutor. (instructed by Parish Patience)

MR S.B. LLOYD: I appear for the first to third respondents. (instructed by the Australian Government Solicitor)

Perhaps it may assist the Court if I say - - -

HIS HONOUR: Just a moment. You appear just for the first respondent, is that right, Mr Lloyd?

MR LLOYD: I appear for the second and third respondents, but they submit to any order save as to costs.

HIS HONOUR: Yes, thank you.

MR LLOYD: All I was going to say, your Honour, is that the first respondent does not oppose the first two orders included in the prosecutor's further amended draft order nisi.

HIS HONOUR: I have a further amended draft order nisi filed on 8 September, is that the one?

MR KNOLL: Yes, your Honour.

HIS HONOUR: I think it would be wise to indicate for the Federal Court just what grounds they are getting and what grounds are staying here to avoid any further uncertainties. They can deal with ground A in the Federal Court, can they not? Ground B has to stay here, because it seems to be procedural fairness. Ground C, why can that not go to the Federal Court? Is that excluded?

MR LLOYD: Yes, it is, your Honour, section 476(3) of the Act.

HIS HONOUR: Yes, that seems to be right. So they can deal with improper exercise of powers but improper exercise does not include relevant considerations and irrelevant considerations. Do you both agree about that? Yes, it seems to be so. So the way to frame the remitter, I suppose, is to exclude from it grounds B, C and D. That would be right, would it not? It should go to the Federal Court of Australia in the New South Wales District Registry, I suppose. The relief that is sought is - - -

MR KNOLL: Your Honour, before this Court the relief sought is in paragraph 3 of the further amended draft order nisi.

HIS HONOUR: Yes, thank you. Anyhow, it is for relief under section 75(v) of the Constitution. That is a compendious way of describing it. What should I do about costs in this Court, say they will be costs in the Federal Court?

MR KNOLL: Your Honour, we both agree they should be costs in the cause.

HIS HONOUR: Yes, but cause in the Federal Court?

MR KNOLL: Yes.

HIS HONOUR: This is what I propose:

1. Order that there be remitted to the Federal Court of Australia, New South Wales District Registry, the application for relief under section 75(v) of the Constitution, excluding from that remitter grounds B, C and D of the amended draft order nisi filed 7 September 2000.

2. Costs so far incurred in this Court be costs of the cause in the Federal Court.

So at the moment you have ground A in the Federal Court. If you can devise some other ground that they have jurisdiction to deal with, you are not shut out from doing that by the terms of the remitter.

MR KNOLL: Your Honour, if I might just attend to one small thing of housekeeping.

HIS HONOUR: Yes.

MR KNOLL: My instructing solicitor and I are not certain whether the actual transcript from the Tribunal ever reached the Court's file and I have brought a spare just in case.

HIS HONOUR: Is it exhibited to an affidavit?

MR KNOLL: No, your Honour, it would have come separately. If I may hand up this copy just to confirm. The Court is welcome to that copy, just in case.

HIS HONOUR: I think it would be better if, in due course, your solicitors swore an affidavit and exhibited it and filed that in the Federal Court.

MR KNOLL: I am happy to do that, your Honour.

HIS HONOUR: I make those orders.

MR KNOLL: May it please the Court.

AT 9.44 AM THE MATTER WAS CONCLUDED